Smith v. Jackson et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DAVID LEE SMITH, AIS # 164818, 	*
*
Plaintiff, 	*
*
vs. 	* CIVIL ACTION NO. 22-00124-CG-B
*
HEATH JACKSON, et al., 	*
*
Defendants. 	*
REPORT AND RECOMMENDATION
Plaintiff 	David 	Lee 	Smith, 	an 	Alabama 	prison 	inmate
proceeding 	without 	the 	assistance 	of 	counsel 	(pro 	se), 	filed 	a
complaint 	seeking 	relief 	under 	42 	U.S.C. 	§ 	1983. 	The 	complaint
alleges 	that 	Heath 	Jackson, 	Sheriff 	of 	Escambia 	County, 	Alabama;
Richard 	Hetrick, 	Warden 	of 	the 	Escambia 	County 	Jail; 	and 	Nurse
Kristy 	Godwin 	acted 	with 	deliberate 	indifference 	to 	Smith’s
serious 	medical 	conditions, 	namely 	the 	human 	immunodeficiency
virus 	(“HIV”), 	based 	on 	their 	actions 	in 	addressing 	coronavirus
disease 2019 (“COVID-19”) at the Escambia County Jail (“the Jail”),
which 	caused 	a 	worsening 	of 	Smith’s 	health.1 	(Doc. 	59). 	Smith
1 Smith’s 	initial 	complaint 	was 	filed 	in 	March 	2022 	and 	did 	not
include 	Nurse 	Godwin 	as 	a 	defendant. 	(See 	Doc. 	1). 	After 	being
afforded 	two 	opportunities 	to 	amend 	his 	compliant, 	Smith 	sought,
nearly eighteen months after the filing of his initial complaint,
to add Nurse Godwin as a defendant. 	(Doc.36). 	Defendants opposed
Smith’s 	motion 	on 	the 	grounds 	of 	unreasonable 	delay 	and 	unfair
prejudice. 	(Doc.37). 	The 	undersigned 	initially 	granted 	Smith’s
motion to the extent he sought to expand on the allegations against
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seeks 	monetary 	relief 	in 	the 	amount 	of 	$1,960,000 	for 	pain 	and
suffering 	(“$10k 	for 	each 	day 	from 	date 	COVID-19 	testing 	was
refused 	leaving 	symptoms 	unabated 	and 	medical 	condition
worsening”). 	(Id. at 6).
Defendants 	have 	answered 	the 	complaint 	and 	filed 	special
reports, 	along 	with 	supporting 	evidentiary 	materials, 	in 	support
of 	their 	denial 	of 	the 	claims 	asserted 	against 	them. 	(Docs. 	28,
29, 75, 76, 77, 78, 79). 	After review of Defendants’ filings, the
Court converted Defendants’ answers, special reports, and attached
affidavits, medical records, institutional records, and guidelines
Defendants 	Jackson 	and 	Hetrick, 	but 	denied 	Smith’s 	motion 	to 	add
Nurse 	Godwin 	given 	the 	eighteen 	month 	delay. 	(Doc. 	47). 	Smith
sought 	reconsideration 	with 	respect 	to 	Nurse 	Godwin 	and 	argued
that “he learned for the first time through Defendant[s’] Special
Report 	that 	Defendants 	had 	(or 	have) 	in 	place 	a 	written 	plan 	for
Covid-19” 	and 	“that 	Nurse 	Godwin[ 	] 	participated 	in 	the 	creation
of 	said 	plan, 	which 	the 	Plaintiff 	contends 	is 	exemplary 	of 	the
Defendant’s 	deliberate 	indifference.” 	(Doc. 	49 	at 	1). 	Upon
reconsideration, 	the 	undersigned 	granted 	Smith’s 	request 	to 	add
Nurse 	Godwin 	as 	a 	defendant 	with 	respect 	to 	her 	alleged
participation in the creation of a COVID-19 plan at Escambia County
Jail. 	(Doc. 	52) 	However, 	because 	Smith 	was 	admittedly 	aware 	of
the 	facts 	supporting 	his 	assertions 	regarding 	Nurse 	Godwin’s
alleged 	denial 	of 	medical 	treatment, 	improper 	diagnoses 	and
licensures, when he filed this action in March 2022, and certainly
when he was transferred away from the facility in September 2022,
he was not permitted to add those claims given the eighteen-month
delay 	and 	the 	fact 	that 	such 	claims 	were 	not 	the 	basis 	of 	his
lawsuit or alleged in his initial pleadings. (Id. at 3; see Docs.
1, 5, 16). 	Smith was cautioned that claims outside the scope set
by 	the 	Court 	would 	be 	stricken. 	(Doc. 	52 	at 	3). 	Additionally,
Smith 	was 	clearly 	instructed 	that 	his 	“fourth 	amended 	complaint
will become the operative pleading in this case” and he “shall not
reference or seek to incorporate his prior complaints.” 	(Doc. 55
at 2; see also Doc. 52 at 4).
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into a motion for summary judgment. 	(See Docs. 81, 82). 	The Court
directed Smith to respond to the motion with affidavits, sworn or
verified declarations, or statements made under penalty of perjury,
and 	other 	evidentiary 	materials 	(Doc. 	82), 	and 	Smith 	filed 	a
response in opposition to the motion. 	(Doc. 84). 	Smith’s response,
however, was not made under penalty of perjury and does not appear
to 	be 	properly 	signed 	as 	required 	by 	the 	Federal 	Rules 	of 	Civil
Procedure. 	(See 	id.). 	Therefore, 	it 	is 	not 	to 	be 	considered 	by
the 	Court 	on 	summary 	judgment. 	See 	Adickes 	v. 	S.H. 	Kress 	& 	Co.,
398 	U.S. 	144, 	158 	n.17 	(1970) 	(unsworn 	statements 	are 	not
admissible 	at 	summary 	judgment 	stage 	of 	proceedings); 	see 	also
Carr v. Tatangelo, 338 F.3d 1259, 1273 n.26 (11th Cir. 2003) (court
may 	not 	consider 	unsworn 	statements 	when 	ruling 	on 	motion 	for
summary judgment).
Presently 	before 	the 	Court 	is 	Defendants’ 	converted 	motion
for 	summary 	judgment 	(Doc. 	81). 	This 	case 	has 	been 	referred 	to
the 	undersigned 	Magistrate 	Judge 	for 	appropriate 	action 	pursuant
to 28 U.S.C. § 636(b)(1)(B) and S.D. Ala. GenLR 72(a)(2)(R). 	For
the 	reasons 	set 	forth 	below, 	it 	is 	RECOMMENDED 	that 	Defendants’
motion 	for 	summary 	judgment 	be 	GRANTED, 	and 	that 	this 	action 	be
DISMISSED with prejudice.
I. 	Summary Judgment Standard of Review.
Summary 	judgment 	is 	proper 	if 	the 	party 	asking 	for 	summary
judgment “shows that there is no genuine dispute as to any material
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fact 	and 	the 	movant 	is 	entitled 	to 	judgment 	as 	a 	matter 	of 	law.”
Fed. 	R. 	Civ. 	P. 	56(a). 	The 	“substantive 	law 	will 	identify 	which
facts 	are 	material.” 	Anderson 	v. 	Liberty 	Lobby, 	Inc., 	477 	U.S.
242, 	248 	(1986). 	The 	court 	does 	not 	“weigh 	the 	evidence 	and
determine 	the 	truth 	of 	the 	matter” 	on 	summary 	judgment. 	Id. 	at
249. 	Rather, 	the 	court 	“determine[s] 	whether 	there 	is 	a 	genuine
issue for trial.” 	Id. at 250. 	“The mere existence of a scintilla
of 	evidence” 	supporting 	the 	nonmoving 	party 	is 	not 	sufficient 	to
defeat a motion for summary judgment. 	Id. at 252.
Because Defendants are asking for summary judgment, they must
demonstrate, by identifying evidence in the record, the absence of
a 	genuine 	dispute 	of 	material 	fact 	or 	show 	that 	the 	nonmoving
party, Smith, does not have evidence in support of some element of
his case on which he bears the ultimate burden of proof at trial.
See 	Celotex 	Corp. 	v. 	Catrett, 	477 	U.S. 	317, 	322-24 	(1986). 	If
Defendants 	carry 	their 	burden, 	then 	Smith 	is 	required 	to 	“‘go
beyond 	the 	pleadings,’ 	and 	by 	[his] 	own 	affidavits, 	or 	by
‘depositions, answers to interrogatories, and admissions on file,’
designate specific facts showing that there is a genuine issue for
trial.” 	Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94
(11th Cir. 1995) (per curiam) (quoting Celotex, 477 U.S. at 324).
“[I]f 	the 	record 	taken 	as 	a 	whole 	could 	lead 	a 	rational 	trier 	of
fact 	to 	find 	for 	the 	nonmoving 	party,” 	then 	a 	genuine 	issue 	of
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material 	fact 	exists. 	Hickson 	Corp. 	v. 	Northern 	Crossarm 	Co.,
Inc., 357 F.3d 1256, 1260 (11th Cir. 2004).
In 	considering 	a 	motion 	for 	summary 	judgment, 	courts 	are
required 	to 	“view 	the 	evidence, 	draw 	all 	reasonable 	factual
inferences, and resolve all reasonable doubts in favor of the non-
movant.” 	Baxter v. Roberts, 54 F.4th 1241, 1253 (11th Cir. 2022)
(quoting Stryker v. City of Homewood, 978 F.3d 769, 773 (11th Cir.
2020)). 	This requirement extends only “to the extent supportable
by 	the 	record.” 	Id. 	(quoting 	Scott 	v. 	Harris, 	550 	U.S. 	372, 	381
n.8 (2007)). 	Where “opposing parties tell two different stories,
one 	of 	which 	is 	blatantly 	contradicted 	by 	the 	record, 	so 	that 	no
reasonable 	jury 	could 	believe 	it, 	a 	court 	should 	not 	adopt 	that
version of the facts for purposes of ruling on a motion for summary
judgment.” 	Scott, 550 U.S. at 380.
II. 	Relevant Facts on Summary Judgment.2
The 	crux 	of 	Smith’s 	complaint 	is 	that 	Defendants’ 	policies
and actions caused a worsening of his HIV condition. 	His decline
is reflected by his CD4 and viral load levels. 	In December 2019,
Smith 	had 	a 	CD4 	count 	of 	449 	and 	viral 	load 	level 	of 	39. 	(Doc.
75-8 	at 	67). 	Smith 	was 	incarcerated 	at 	the 	Jail 	from 	June 	27,
2021, to September 27, 2022, and he was informed during that time
2 The 	“‘facts,’ 	as 	accepted 	at 	the 	summary 	judgment 	stage 	of 	the
proceedings, may not be the ‘actual’ facts of the case.” 	Priester
v. 	City 	of 	Riviera 	Beach, 	Fla., 	208 	F.3d 	919, 	925 	n.3 	(11th 	Cir.
2000).
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(in July 2022) that his CD4 count was 208 and his viral load level
was 	147,000. 	(Doc. 	75-4 	at 	122, 	125). 	While 	Smith 	believes 	he
contracted COVID-19 while incarcerated at the Jail, it is not his
claim that COVID-19 worsened his condition. 	Instead, Smith’s claim
is more broad, alleging that with knowledge of his serious health
conditions, namely HIV, Defendants Jackson and Hetrick acted with
deliberate indifference to his health and safety by: (1) ignoring
CDC 	guidelines 	concerning 	quarantining 	of 	close 	contact 	persons
and 	those 	symptomatic of 	the 	COVID-19 	virus; 	(2) 	allowing
unqualified nurses to make medical diagnoses; (3) allowing nurses
to diagnose without objective medical tests – COVID-19 tests; (4)
creating and implementing policies that harmed Smith; (5) failing
to 	adequately 	train 	and 	instruct 	and 	supervise 	the 	Jail 	as 	to
quarantining 	inmates 	during 	outbreak 	of 	COVID-19, 	including
quarantining 	close 	contacts; 	(6) 	ignoring 	Smith’s 	numerous
requests, 	grievances, 	and 	other 	communications 	submitted
concerning his serious medical condition and risk of exposure; (7)
failing 	to 	mandate 	testing 	upon 	the 	request 	of 	detainees,
especially 	high-risk 	inmates; 	and 	(8) 	failing 	to 	pursue 	an 	“own
recognizance” bond as means to protect Smith, instead of as means
to 	reduce 	health 	care 	costs 	of 	HIV 	medications.3 	(Doc. 	59 	at 	4,
7-10). 	He 	further 	claims 	that 	Nurse 	Godwin 	knew 	of 	his 	serious
3 For clarity, the claims have been renumbered in this report from
Smith’s complaint. 	(See Doc. 59).
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medical 	conditions 	and 	acted 	with 	deliberate 	indifference 	to 	his
health 	and 	safety 	by: 	(1) 	ignoring 	CDC 	guidelines 	concerning
quarantining of close contact persons and those who are symptomatic
of 	COVID-19; 	(2) 	allowing 	nurses 	to 	diagnose 	without 	objective
medical tests – COVID-19 tests; and (3) going beyond her authority
as a nurse (as opposed to a physician) to participate in and create
the COVID-19 plan for the Jail. 	(Id. at 10-11).4
Defendants 	generally 	maintain 	that 	they 	have 	responded
reasonably 	to 	the 	risks 	to 	Smith, 	and 	all 	inmates, 	regarding 	the
measures 	taken 	to 	combat 	COVID-19, 	and 	Defendants 	specifically
contend 	that 	they 	have 	not 	acted 	with 	deliberate 	indifference 	to
Smith’s medical conditions.
A. The Jail’s COVID-19 Response.
When COVID-19 emerged in March 2020, Sheriff Jackson, Warden
Hetrick, the Director of Nursing, Meagan Langford,5 and the Jail’s
4 In 	addition 	to 	the 	identified 	claims, 	Smith 	alleges 	that 	Nurse
Godwin 	is 	liable 	for: 	(1) 	failing 	to 	notify 	Sheriff 	Jackson 	and
Warden 	Hetrick 	of 	his 	serious 	medical 	needs 	and 	conditions 	and
high-risk 	status 	and 	(2) 	allowing 	unqualified 	nurses 	to 	make
medical 	diagnosis. 	(Doc. 	59 	at 	10-11). 	Because 	the 	Court
specifically 	instructed 	Smith 	that 	in 	amending 	his 	complaint, 	he
was “not allowed to assert allegations against Nurse Kristy Godwin
related 	to 	denial 	of 	medical 	treatment, 	improper 	diagnoses,
licensure, 	etc.” 	and 	warned 	Smith 	that 	claims 	unrelated 	to 	her
creation and implementation of the Jail’s COVID-19 policy would be
stricken (Doc. 54 at 3), these claims against Nurse Kristy Godwin
are STRICKEN and will not be addressed herein.
5 The Director of Nursing, Meagan Langford, is not a party to this
action. 	Nurse Langford left her position in June 2022, and Nurse
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doctor, Dr. Elizabeth Low,6 coordinated to develop a plan of action
to 	address 	COVID-19 	at 	the 	Jail. 	This 	plan 	included 	adopting
measures 	in 	compliance 	with 	the 	Guidance 	on 	Management 	of
Coronavirus Disease 2019 (COVID-19) in Correctional and Detention
Centers 	published 	by 	the 	U.S. 	Centers 	for 	Disease 	Control 	and
Prevention 	(“CDC”) 	(hereinafter 	referred 	to 	as 	the 	“CDC
guidelines”). 	(See 	Doc. 	75-1 	at 	2-3, 	24-396; 	Doc. 	75-2 	at 	2-3).
The 	medical 	staff 	at 	the 	Jail 	were 	instructed 	to 	follow 	the
guidance 	of 	the 	CDC. 	(Doc. 	76-1 	at 	3). 	Some 	of 	the 	actions 	the
Jail took to manage and prevent the COVID-19 virus were:
• 	Providing 	education 	to 	inmates 	and 	staff 	in 	both 	oral 	and
written 	format 	about 	the 	signs 	and 	symptoms 	of 	COVID-19,
proper hygiene, and social distancing;
• 	Encouraging 	proper 	hygiene 	practices 	and 	social 	distancing
among inmates and staff;
• 	Ensuring there was sufficient soap in bathroom areas and hand
sanitizer 	available 	to 	allow 	for 	all 	persons 	in 	the 	Jail 	to
frequently wash their hands;
• 	Continuing 	to 	provide 	medical 	appointments 	and 	care 	to 	the
extent possible;
• 	Engaging in enhanced cleaning and disinfecting procedures;
• 	Developing 	a 	plan 	for 	quarantining 	new 	inmates 	before 	they
were introduced to the general Jail population;
• 	Performing 	screening 	checks 	on 	those 	entering 	the 	Jail 	for
symptoms of COVID-19;
Kristy Godwin became the Director of Nursing. 	(Doc. 75-1 at 2).
6 The 	Jail 	physician, 	Dr. 	Elizabeth 	Low, 	is 	not 	a 	party 	to 	this
action.
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• 	Implementing some social distancing measures;
• 	Providing inmates with facemasks and instructions for proper
wearing and care of facemasks;
• 	Providing staff members with facemasks and gloves along with
instructions 	for 	staff 	members 	on 	use 	and 	cleaning 	of 	these
items 	and 	proper 	social 	distancing 	strategies 	related 	to
inmates;
• 	Implementing 	a 	quarantine 	plan 	for 	inmates 	and 	staff
consistent with the CDC’s guidance; and
• 	Monitoring both inmates and staff for COVID-19.
(Doc. 28-1 at 4-5).
More specifically, Defendants have testified that to protect
the 	inmates, 	Jail 	staff 	were 	screened 	for 	COVID-19 	upon 	arriving
to work, which included a temperature check and questioning as to
symptoms and exposure. 	(Doc. 75-2 at 4). 	Staff were required to
wear 	facemasks 	and 	other 	personal 	protective 	equipment 	and
complete 	enhanced 	cleaning 	procedures. 	(Id.). 	Inmates 	were
screened for COVID-19 upon entry into the Jail, and intake inmates
were 	held 	in 	quarantine 	upon 	their 	arrival 	for 	three 	days 	unless
they came from another correctional facility. 	(Doc. 28-1 at 4-5;
Doc. 75-1 at 398-400, 411-13; Doc. 75-2 at 4). 	If an inmate tested
positive 	for 	COVID-19, 	the 	inmate 	was 	placed 	in 	isolation 	in 	an
individual holding cell for the CDC-recommended quarantine period
to the extent possible. 	(Doc. 28-3 at 3; Doc. 75-1 at 4; Doc. 76-
1 	at 	3). 	Inmates 	who 	tested 	positive 	for 	COVID-19 	were 	offered
---
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medication, including COVID-19 specific medication. 	(Doc. 28-3 at
3; Doc. 75-3 at 16). 	If an inmate who tested positive for COVID-
19 	did 	not 	see 	improvement 	in 	their 	symptoms 	within 	two 	to 	three
days, 	then 	they 	were 	seen 	by 	the 	Jail’s 	physician 	for 	further
treatment. 	(Doc. 	76-1 	at 	3). 	The 	Jail 	provided 	information 	on
the 	number 	of 	COVID-19 	positive 	inmates 	to 	the 	Department 	of
Justice on a weekly basis. 	(Doc. 28-1 at 5; Doc. 75-1 at 401-08;
Doc. 	75-2 	at 	2). 	All 	officers 	at 	the 	Jail 	were 	trained 	on 	the
signs and symptoms of COVID-19, proper hygiene, social distancing,
cleaning and disinfecting procedures, screening inmates for COVID-
19, 	quarantining, 	and 	the 	Jail’s 	COVID-19 	policy. 	(Doc. 	75-1 	at
3; 	Doc. 	75-2 	at 	3-4). 	Staff 	members 	were 	instructed 	to 	monitor
inmates for health issues and symptoms. 	(Doc. 75-2 at 4). 	To the
extent 	possible, 	inmates 	who 	tested 	positive 	for 	COVID-19 	were
separated from the other inmates and quarantined in line with the
CDC’s guidelines. 	(Doc. 63 at 4-5; Doc. 76-1 at 3). 	To accomplish
the 	isolation 	of 	COVID-19 	positive 	inmates, 	Defendants 	converted
areas of the Jail, including medical holding cells, the egress (an
isolated room with a toilet near the sally port), and the assembly,
to 	be 	used 	as 	isolation 	areas. 	(Doc. 	63 	at 	4-5). 	Facemasks 	and
information 	on 	the 	proper 	way 	to 	wear 	a 	facemask 	were 	provided.
(Doc. 75-2 at 4).
As the pandemic continued and the CDC guidelines changed, the
Jail 	kept 	abreast 	of 	the 	changes, 	and 	Sheriff 	Jackson 	and 	Warden
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Hetrick 	worked 	with 	the 	medical 	team 	at 	the 	Jail 	to 	implement
policies that followed the CDC recommendations to the best of the
Jail’s 	ability 	considering 	spacing, 	security, 	and 	supply 	chain
constraints. 	(Doc. 	75-1 	at 	3; 	Doc. 	75-2 	at 	3). 	When 	it 	became
available, the Jail took steps to ensure the inmates could receive
the COVID-19 vaccine. 	(Doc. 28-2 at 6; Doc. 75-2 at 5). 	And, in
the fall of 2021, the Jail purchased a testing machine to increase
its ability to test inmates for COVID-19. 	(Doc. 75-1 at 4, 415).
For 	most 	of 	the 	relevant 	period, 	the 	Jail 	employed 	two 	or
three nurses, including Nurse Godwin, and a doctor who came to the
Jail once a week, Dr. Low. 	(Doc. 75-2 at 5; Doc. 76-1 at 2). 	The
Jail relies on the medical staff to provide medical care to inmates.
(Doc. 	75-2 	at 	4). 	The 	nurses 	at 	the 	Jail 	worked 	under 	the
supervision of the doctor as permitted by Alabama law. 	(Doc. 75-
1 at 2). 	Pursuant to standing orders issued by Dr. Low, the Jail
nurses could treat certain qualifying conditions without having to
first obtain a physician’s order. 	(Doc. 76-1 at 2). 	Inmates were
assessed 	by 	medical 	staff 	to 	determine 	if 	the 	symptoms 	they
exhibited 	were 	related 	to 	COVID-19, 	as 	opposed 	to 	some 	other
medical 	condition. 	(Id. 	at 	3). 	If 	the 	symptoms 	were 	determined
by 	medical 	staff 	to 	be 	COVID-19 	symptoms, 	the 	inmate 	was 	tested
for 	COVID-19. 	(Id.). 	All 	positive 	COVID-19 	cases 	were 	reported
to Dr. Low, and standing orders were implemented to provide certain
vitamins and other medications to inmates who tested positive for
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COVID-19. 	(Id.). 	If 	an 	inmate 	who 	tested 	positive 	for 	COVID-19
did not see improvement in their symptoms within two to three days,
they were seen by Dr. Low for further treatment. 	(Id.). 	Inmates
who 	tested 	positive 	for 	COVID-19 	were 	quarantined 	in 	individual
holding 	cells 	and 	egress 	areas, 	unless 	there 	was 	an 	issue 	with
spacing. 	(Doc. 75-2 at 5-6). 	Where spacing was an issue, inmates
who tested positive may have been quarantined together in an area
separate 	and 	apart 	from 	other 	inmates 	to 	ensure 	that 	they 	were
separated from the general inmate population. 	(Id. at 6). 	Inmates
who tested positive for COVID-19 were monitored by medical staff.
(Id.). 	Efforts 	were 	made 	to 	ensure 	that 	inmates 	who 	were 	in
isolation 	or 	quarantine 	due 	to 	COVID-19 	did 	not 	encounter 	the
general population of the Jail. 	(Id.).
During 	outbreaks 	of 	COVID-19, 	like 	the 	one 	in 	January 	2022
which 	is 	pertinent 	here, 	inmates 	who 	contracted 	COVID-19 	were
quarantined 	and 	isolated 	to 	the 	extent 	possible, 	which 	meant
inmates were kept in their units because, due to space and security
issues, 	they 	could 	not 	be 	held 	in 	individual 	holding 	cells, 	the
egress, and inmate assembly areas, nor could they be moved between
units safely. 	(Doc. 28-2 at 8; Doc. 63 at 5; Doc. 75-2 at 6).
B. January 2022 COVID-19 Outbreak at the Jail.
The 	Jail 	had 	no 	confirmed 	cases 	of 	COVID-19 	in 	the 	weeks
leading up to January 2022. 	(See Doc. 75-2 at 6; Doc. 75-3 at 2-
43). 	On January 14, 2022, however, three inmates in Unit 3, where
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Smith was housed, tested positive for COVID-19. 	(Doc. 75-2 at 7).
As 	of 	January 	19, 	2022, 	seventeen 	inmates 	at 	the 	Jail 	were
diagnosed 	with 	COVID-19 	and/or 	quarantined 	due 	to 	COVID-19, 	and
five of those inmates were from Unit 3. 	(Doc. 75-2 at 7; Doc. 75-
6 	at 	1). 	Due 	to 	spacing 	issues 	and 	constraints, 	the 	Jail 	was
placed 	on 	“lockdown,” 	and 	COVID-19 	positive 	inmates 	were 	not
isolated 	or 	quarantined 	outside 	of 	their 	units. 	(Doc. 	63 	at 	5;
Doc. 	75-2 	at 	6). 	Stated 	another 	way, 	there 	was 	no 	room 	to
quarantine 	inmates 	in 	the 	designated 	areas 	of 	holding 	cells, 	the
egress, 	and 	the 	assembly. 	(Doc. 	63 	at 	7). 	Instead, 	all 	inmates
were secured inside their assigned cells and units such that they
remained with the same individuals they had been in close contact
with, and no new inmates were exposed to the virus. 	(Id. at 7-8).
Still, to the extent possible, the inmates who tested positive for
COVID-19 	were 	held 	separately 	from 	the 	other 	inmates 	in 	cells
within 	the 	units. 	(Id. 	at 	5, 	8). 	During 	this 	time, 	the 	Jail
continued to remind inmates of the importance of social distancing,
proper hygiene, and masking, and it continued to perform enhanced
cleaning measures. 	(Doc. 63 at 5-7; Doc. 75-2 at 6). 	By February
1, 	2022, 	there 	was 	only 	one 	positive 	COVID-19 	case 	at 	the 	Jail,
and 	that 	inmate 	was 	quarantined 	in 	an 	individual 	holding 	cell
because there was room in the Jail to hold him individually. 	(Doc.
75-6 at 2, 7). 	By February 8, 2022, there were no cases of COVID-
19 at the Jail. 	(Id. at 3).
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C. Smith’s Detainment at the Jail.
Smith was booked into the Jail on June 27, 2021. 	(Doc. 28-5
at 	3). 	During 	intake, 	he 	informed 	medical 	staff 	of 	his 	medical
history, 	including 	HIV, 	diabetes, 	mental 	illness, 	seizures, 	and
throat cancer. 	(Id. at 2-3). 	He also presented with symptoms of
congestion and sinus drainage. 	(Id.). 	At that time, Smith refused
all 	treatment. 	(Id.). 	Indeed, 	the 	chart 	notes 	indicate: 	“Not
wanting 	to 	be 	on 	meds. 	Does 	not 	want 	sick 	call. 	Refuses 	any 	help
at this time[,]” and they reflect Smith stating: “If it’s my time,
it’s 	my 	time.” 	(Id.). 	The 	next 	day, 	however, 	Smith 	claims 	he
“attempted” to inform Defendants Jackson and Hetrick of his serious
medical 	conditions, 	but 	both 	Defendants 	told 	him 	to 	submit 	his
concerns via the kiosk and refused to listen to him. 	(Doc. 59 at
12). 	Smith claims he submitted his concerns multiple times through
the 	kiosk 	while 	at 	the 	Jail 	but 	never 	received 	a 	response 	from
either Defendant Jackson or Defendant Hetrick. 	(Id.). 	Defendants
Jackson 	and 	Hetrick 	deny 	knowledge 	of 	Smith’s 	medical 	conditions
and have submitted certified records from the Jail’s kiosk, which
show 	no 	grievance 	was 	ever 	sent 	from 	Smith 	to 	Sheriff 	Jackson.
(See Doc. 28-1 at 2-3; Doc. 28-2 at 2-3; Doc. 75-1 at 2; Doc. 75-
2 	at 	1; 	Doc. 	75-7). 	Sheriff 	Jackson 	testifies 	that 	he 	does 	not
recall 	Smith 	otherwise 	contacting 	him 	about 	his 	HIV. 	(Doc. 	28-1
at 3). 	Nor do the certified records from the Jail show that Smith
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ever 	told 	Warden 	Hetrick 	he 	had 	HIV. 	(See 	Doc. 	28-2 	at 	2; 	Doc.
75-7).
On 	June 	30, 	2021, 	Smith 	suffered 	a 	seizure 	and 	claims 	he
requested to receive all required medications. 	(Doc. 28-5 at 4).
He 	notified 	the 	medical 	staff 	that 	he 	previously 	received
medication and treatment from 1917 Clinic in Birmingham, Alabama.
(Id.). 	The 	Jail 	contacted 	the 	1917 	Clinic, 	but 	it 	could 	find 	no
records 	for 	Smith. 	(Id.). 	Smith 	inquired 	about 	his 	medications
again 	on 	July 	1, 	2021, 	but 	he 	received 	no 	HIV 	medications. 	(See
id.).
In July 2021, Smith was placed in Unit 3 by the supervisor on
shift. 	(Doc. 	28-2 	at 	3). 	The 	medical 	records 	reflect 	that 	from
July 	2021 	to 	the 	end 	of 	the 	year, 	Smith 	was 	seen 	by 	Nurse 	Godwin
and treated for diabetic complaints including a foot infection and
dry, sensitive skin, as well as sinus issues and thumb pain. 	(See
Doc. 28-5 at 4; Doc. 75-8 at 70-73).
Smith 	claims 	he 	was 	seen 	in 	the 	health 	care 	unit 	on 	January
1, 	2022, 	for 	“a 	productive 	cough, 	sinus 	issues 	and 	shortness 	of
breath,” 	and 	he 	claims 	he 	requested 	a 	COVID-19 	test 	on 	that 	date
but was denied a test “per policy” and treated for allergies with
sinus 	medications. 	(Doc. 	59 	at 	12). 	Smith 	claims 	he 	“was 	not
quarantined, but was simply returned to the housing unit from which
he 	came.” 	(Id. 	at 	12-13). 	However, 	there 	is 	no 	record 	of 	Smith
seeking medical attention on January 1, 2022, or of him requesting
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a COVID-19 test. 	Smith further asserts that he filed a grievance
complaining 	about 	the 	refusal 	of 	a 	COVID 	test 	- 	voicing 	his
concerns about the possibility of having undiagnosed COVID and the
serious risk the virus posed to his health - but the grievance was
ignored, as were his kiosk messages addressed to Defendants Jackson
and 	Hetrick. 	(Id. 	at 	13). 	However, 	the 	record 	is 	devoid 	of 	any
grievance 	by 	Smith 	complaining 	of 	undiagnosed 	COVID-19 	or
requesting a COVID-19 test. 	(See Docs. 75-7, 75-8). 	Nor are there
records 	of 	any 	grievances 	by 	Smith 	regarding 	the 	refusal 	of 	a
COVID-19 test. 	(See Doc. 75-7).
The medical records instead reflect that on January 7, 2022,
Smith was evaluated by Nurse Godwin for severe heartburn and sinus
issues, with complaints of feeling dizzy. 	(Doc. 75-8 at 91). 	Per
verbal 	order 	of 	Dr. 	Low, 	Smith 	was 	prescribed 	Protonix 	for 	his
heartburn and Mucinex for his sinus issues. 	(Id.).
On 	January 	10, 	2022, 	Smith 	submitted 	a 	sick 	call 	request
stating: 	“I’m 	sick 	with 	a 	severe 	cold. 	I 	believe 	it 	is 	the 	flu.
I’m hot then cold as well as I can’t breathe. I need a sick to be
seen 	again 	as 	I 	have 	a 	weak 	immune 	system.” 	(Id. 	at 	68). 	Nurse
Langford’s 	chart 	notation 	from 	that 	day 	records 	Smith 	having 	no
fever 	(with 	a 	body 	temperature 	of 	98 	degrees 	Fahrenheit) 	and
reflects that he was prescribed a “Z-pack” and that she would “get
records 	from 	Unity 	Wellness 	Clinic 	@ 	Opelika 	Alabama.” 	(Id. 	at
91). 	Those 	records 	were 	requested 	and 	received 	the 	same 	day 	and
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confirmed Smith’s HIV-positive status. 	(See Doc. 28-5 at 5; Doc.
75-8 at 15-35).
On 	January 	12, 	2022, 	Smith 	was 	evaluated 	and 	found 	to 	have
“sinus 	allergy 	problems” 	and 	prescribed 	Sinex 	nasal 	spray 	and
Zyrtec. 	(Doc. 	75-8 	at 	87). 	Based 	on 	the 	signature, 	the 	medical
evaluation appears to have been conducted by Dr. Low. 	(See id.).
The 	medical 	records 	do 	not 	reflect 	that 	Smith 	reported 	to 	the
medical unit for the rest of January 2022, or that he filed another
sick call request in January 2022.
On 	January 	14, 	2022, 	however 	- 	during 	the 	time 	the 	Jail 	was
on lockdown due to the COVID-19 outbreak - Smith sent a grievance
to 	Warden 	Hetrick 	at 	around 	8:25 	p.m., 	stating: 	“I 	WOULD 	LIKE 	A
1983 FORM TO FILE A LAWSUIT DUE TO COVID BEING IN THE DORM DUE TO
MY HEALTH AND MY DUE PROCESS BEING VIOLATED. ASAP PLEASE.” 	(Doc.
75-7 at 5). 	When no immediate response was received, Smith filed
another 	grievance 	at 	10:39 	p.m., 	stating: 	“[I] 	asked 	for 	a 	1983
federal lawsuit form and still havent [sic] got one because it has
violated my due process by not giving me a preliminary hearing and
now 	youve 	[sic] 	brought 	7 	people 	who 	tested 	positive 	for 	covid
back in the dorm.” 	(Id. at 6).
Smith maintains that on February 2, 2022, he was offered his
HIV medications and was told they would be provided, but they were
--- 	---
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not.7 	(Doc. 59 at 13). 	The medical records, however, reflect that
on 	February 	2, 	2022, 	when 	asked 	about 	his 	medications, 	“[Smith]
still 	stat[ed] 	he 	does 	want 	to 	receive 	treatment 	for 	it 	while
incarcerated because he ‘won’t be here long.’” 	(Doc. 75-8 at 9).
On 	May 	13, 	2022, 	Smith 	was 	evaluated 	by 	the 	Jail’s 	medical
staff 	for 	complaints 	of 	a 	sore 	throat. 	(Doc. 	28-5 	at 	6). 	The
examination revealed redness and “pus pockets” to Smith’s throat,
and 	he 	was 	treated 	with 	a 	ten-day 	course 	of 	antibiotics, 	without
any objective tests being performed. 	(Id.).
On 	June 	18, 	2022, 	the 	nurse 	again 	asked 	Smith 	“if 	he 	still
was 	not 	wanting 	to 	receive 	any 	healthcare 	for 	HIV,” 	and 	Smith
replied, “Well yea I do because it don’t look like I’m getting out
no 	time 	soon. 	I 	wasn’t 	going 	to 	worry 	y’all 	or 	myself 	about 	it 	&
just 	do 	it 	when 	I 	got 	out 	but 	I’m 	not 	getting 	out 	no 	time 	soon.”
(Doc. 	75-8 	at 	81). 	The 	medical 	staff 	scheduled 	Smith 	for 	an
7 	Smith 	asserts 	that 	because 	of 	previously 	failed 	grievance
attempts, he “became very vocal about the lack of medical care at
the 	jail 	and 	the 	fact 	that 	there 	were 	prisoners 	in 	his 	housing
unit 	who 	displayed 	symptoms 	of 	COVID-19.” 	(Doc. 	59 	at 	13). 	He
claims 	this 	resulted 	in 	him 	being 	moved 	to 	another 	unit 	with
inmates 	who 	were 	also 	displaying 	COVID-19 	symptoms, 	in 	violation
of CDC guidelines. 	(Id.). 	Defendants, however, testify that Smith
was 	moved 	from 	housing 	Unit 	3 	to 	housing 	Unit 	2 	on 	February 	28,
2022, 	for 	disciplinary 	reasons. 	(Doc. 	75-2 	at 	7). 	Defendants
further testify that Unit 2 cells are individual cells, where there
is 	no 	interaction 	with 	other 	inmates 	in 	the 	unit, 	and 	there 	were
no confirmed COVID-19 cases at that date. 	(Id.). 	Smith was moved
back 	to 	Unit 	3 	on 	March 	6, 	2022 	(and 	notably 	raises 	no 	COVID
exposure after this time), and then to the Gym on April 30, 2022,
where 	he 	remained 	until 	his 	release 	from 	the 	Jail 	in 	September
2022. 	(Id. at 18).
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appointment 	to 	be 	seen 	at 	the 	Mobile 	County 	Health 	Department.
(Doc. 28-5 at 7-8; Doc. 75-4).
When 	Smith 	was 	taken 	to 	the 	Mobile 	County 	Health 	Department
on July 27, 2022, his sore throat symptoms continued, and a strep
test 	and 	COVID-19 	test 	were 	performed, 	which 	were 	both 	negative.
(Doc. 	75-4 	at 	18, 	116). 	Smith 	was 	prescribed 	an 	antibiotic, 	as
well 	as 	HIV 	medication.8 	(Id. 	at 	18, 	141). 	Smith 	claims 	he 	was
released 	on 	bond 	in 	July 	2022 	following 	this 	appointment. 	(Doc.
59 at 14). 	However, the Jail records indicate that Smith remained
in the Jail until September 27, 2022, when Sheriff Jackson signed
a 	release 	on 	own 	recognizance 	bond 	that 	allowed 	Smith 	to 	be
transferred to the custody of the Lee County Sheriff’s Department
pursuant 	to 	a 	detainer 	placed 	on 	March 	23, 	2022. 	(See 	Doc. 	75-2
at 8, 43-44). 	At the time of his release, the Jail records reflect
that 	Smith 	was 	being 	provided 	with 	HIV 	medication 	from 	the 	Jail
8 Smith 	also 	tested 	positive 	and 	was 	treated 	for 	latent 	syphilis
at 	this 	appointment. 	(Doc. 	75-4 	at 	8, 	10). 	Though 	outside 	the
scope 	of 	the 	complaint, 	the 	Court 	notes 	that 	Smith 	attempts 	to
argue 	that 	Defendants 	are 	liable 	for 	not 	notifying 	him 	of 	and
treating 	him 	for 	syphilis 	while 	detained 	at 	the 	Jail. 	Such
argument is meritless. 	First, the records from the Mobile County
Health 	Department 	identify 	an 	onset 	date 	for 	syphilis 	of 	January
6, 	2016. 	(Id. 	at 	8). 	Thus, 	Smith 	should 	have 	been 	aware 	of 	his
contraction of the infection prior to entering the Jail. 	This is
further 	supported 	by 	the 	Mobile 	County 	Health 	Department 	record,
which 	states, 	“H[istory] 	of 	t[reatment] 	questionable, 	[Smith] 	is
unsure 	where 	or 	what 	treated 	with 	‘while 	back.’” 	(Id. 	at 	10).
Second, the record confirms that Smith received a 28-day course of
oral antibiotics to treat the latent syphilis. 	(Id.).
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(Doc. 	75-8 	at 	78), 	which 	were 	paid 	for 	through 	an 	outside
organization. 	(Doc. 75-1 at 2).
Smith 	asserts 	that 	since 	being 	transferred 	from 	the 	Jail,
“his 	levels 	have 	bounced 	back 	considerably, 	but 	he 	still 	suffers
from 	the 	ill 	effects 	of 	his 	medical 	treatment 	and 	exposure 	to
COVID-19 at the Escambia County Jail.” 	(Doc. 59 at 14).
III. Discussion.
A. Immunity Defenses.
Defendants 	have 	asserted 	immunity 	defenses. 	(Doc. 	78 	at 	2-
3; 	Doc. 	79 	at 	4). 	To 	the 	extent 	Defendants 	Jackson 	and 	Hetrick
are 	being 	sued 	in 	their 	official 	capacities, 	as 	county 	deputies
and 	officers, 	they 	are 	considered 	employees 	of 	the 	State 	and 	are
immune 	from 	suit 	pursuant 	to 	the 	Eleventh 	Amendment, 	which 	bars
“suits 	against 	a 	state 	brought 	in 	federal 	court 	by 	citizens 	of
that 	state.” 	Harbert 	Int’l, 	Inc. 	v. 	James, 	157 	F.3d 	1271, 	1277
(11th 	Cir. 	1998); 	see 	Haywood 	v. 	Alexander, 	121 	So. 	3d 	972, 	978
(Ala. 	2013) 	(county 	sheriffs 	and 	their 	deputies 	are 	employees 	of
the 	State); 	Dean 	v. 	Barber, 	951 	F.2d 	1210, 	1215 	n.5 	(11th 	Cir.
1992) (“Dean’s suit, to the extent that it attempts to hold Sheriff
Bailey 	or 	other 	members 	of 	the 	Jefferson 	County 	Sheriff’s
Department 	liable 	in 	their 	official 	capacity 	under 	section 	1983,
is 	barred 	because 	the 	sheriffs 	are 	employees 	of 	the 	State 	of
Alabama. 	Dean’s 	suit 	against 	the 	sheriffs 	in 	their 	official
capacity, 	therefore, 	is 	prohibited 	by 	the 	Eleventh 	Amendment
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because 	the 	State 	of 	Alabama 	is 	the 	real 	party 	in 	interest.”).
Nurse Godwin, however, is not a sheriff or deputy but a staff nurse
and director of nursing at the Jail. 	Unlike the sheriff and deputy
defendants, the actions taken by Nurse Godwin in the scope of her
employment do not inherently constitute actions by the state. 	See
Melton 	v. 	Abston, 	841 	F.3d 	1207, 	1234 	(11th 	Cir. 	2016). 	It 	is
unclear 	from 	the 	record 	whether 	Nurse 	Godwin 	is 	employed 	by 	the
Jail or a contracted private entity. 	Due to this ambiguity, Nurse
Godwin 	is 	not 	entitled 	to 	Eleventh 	Amendment 	immunity. 	See
Hennessey 	v. 	Univ. 	of 	Kan. 	Hosp. 	Auth., 	53 	F.4th 	516, 	530 	(10th
Cir. 	2022) 	(noting 	that 	the 	party 	asserting 	Eleventh 	Amendment
immunity 	bears 	the 	burden 	of 	establishing 	it 	is 	an 	arm 	of 	the
state).
“Qualified immunity protects government officials performing
discretionary functions from suits in their individual capacities
unless 	their 	conduct 	violates 	‘clearly 	established 	statutory 	or
constitutional 	rights 	of 	which 	a 	reasonable 	person 	would 	have
known.’” 	Dalrymple 	v. 	Reno, 	334 	F.3d 	991, 	994 	(11th 	Cir. 	2003)
(quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)). 	Because there
is no dispute that the correctional defendants in this action were
acting within their discretionary authority at all times when the
acts in question occurred, “the burden shifts to the plaintiff to
establish 	that 	qualified 	immunity 	is 	inappropriate.” 	Garcia 	v.
Casey, 	75 	F.4th 	1176, 	1185 	(11th 	Cir. 	2023) 	(quotation 	omitted).
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To 	do 	so, 	the 	plaintiff 	must 	show 	both 	that 	(1) 	the 	defendants
violated 	a 	constitutional 	right 	of 	plaintiff, 	and 	(2) 	the 	right
was clearly established at the time of the alleged violation. 	See,
e.g., 	Jacoby 	v. 	Baldwin 	County, 	835 	F.3d 	1338, 	1344 	(11th 	Cir.
2016).
Accordingly, 	the 	Court 	turns 	to 	examine 	whether 	there 	was 	a
constitutional violation.
B. Conditions of Confinement Claims.
Liberally construed, Smith alleges constitutional violations
regarding 	the 	conditions 	of 	his 	confinement. 	That 	is, 	Smith
asserts 	the 	Defendants 	acted 	with 	deliberate 	indifference 	to 	his
serious medical conditions, namely HIV.
Prison 	officials 	violate 	the 	Eighth 	Amendment9 through 	“the
unnecessary 	and 	wanton 	infliction 	of 	pain.” 	Farmer 	v. 	Brennan,
511 	U.S. 	825, 	834 	(1994) 	(quotation 	omitted). 	The 	Supreme 	Court
has 	defined 	wantonness 	as 	“deliberate 	indifference 	to 	a
substantial risk of serious harm to a prisoner.” 	Id. at 836. 	Thus,
to establish an Eighth Amendment violation, a prisoner must prove
both an objective and a subjective component; regardless of whether
the 	treatment 	received 	by 	the 	prisoner 	is 	characterized 	as
9 Because Smith was a pretrial detainee at the time his complaint
arose, 	his 	claims 	fall 	under 	the 	Fourteenth 	Amendment; 	however,
the standards for evaluating such claims are the same as evaluating
“a prisoner’s claim of inadequate care under the Eighth Amendment.”
Swain 	v. 	Junior, 	961 	F.3d 	1276, 	1285 	(11th 	Cir. 	2020) 	(quotation
omitted).
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“inhumane 	conditions 	of 	confinement, 	failure 	to 	attend 	to 	his
medical needs, or a combination of both, it is appropriate to apply
the 	‘deliberate 	indifference’ 	standard 	. 	. 	. 	.” 	Helling 	v.
McKinney, 509 U.S. 25, 32 (1993).
An Eighth Amendment claim is said to have two components,
an 	objective 	component, 	which 	inquires 	whether 	the
alleged 	wrongdoing 	was 	objectively 	harmful 	enough 	to
establish 	a 	constitutional 	violation, 	and 	a 	subjective
component, 	which 	inquires 	whether 	the 	officials 	acted
with a sufficiently culpable state of mind.
Sims v. Mashburn, 25 F.3d 980, 983 (11th Cir. 1994). 	To prevail,
a 	plaintiff 	must 	prove 	that 	there 	was 	“a 	substantial 	risk 	of
serious 	harm,” 	and 	that 	the 	defendant 	was 	subjectively
deliberately 	indifferent 	to 	that 	risk. 	Farmer, 	511 	U.S. 	at 	832-
34. 	In defining “deliberate indifference,” the Supreme Court has
stated:
With deliberate indifference lying somewhere between the
poles of negligence at one end and purpose or knowledge
at 	the 	other, 	the 	Courts 	of 	Appeals 	have 	routinely
equated deliberate indifference with recklessness. 	See
e.g., 	LaMarca 	v. 	Turner, 	995 	F.2d 	1526, 	1535 	(CA11
1993) . . . . It is, indeed, fair to say that acting or
failing 	to 	act 	with 	deliberate 	indifference 	to 	a
substantial 	risk 	of 	serious 	harm 	to 	a 	prisoner 	is 	the
equivalent of recklessly disregarding that risk.
Id. 	at 	836. 	Thus, 	the 	Court 	has 	concluded 	that 	the 	“subjective
recklessness” standard of criminal law is the test for “deliberate
indifference” 	under 	the 	Eighth 	Amendment. 	Id. 	at 	839-40. 	Under
this 	test, 	there 	is 	no 	liability 	for 	“an 	official’s 	failure 	to
alleviate a significant risk that he should have perceived but did
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not . . . .” 	Id. at 838. 	It is not enough that an inmate proves
the defendant should have known of the risk but did not, as actual
knowledge 	is 	the 	key. 	See, 	e.g., 	Cottrell 	v. 	Caldwell, 	85 	F.3d
1480, 1491 (11th Cir. 1996).
In 	addition, 	prison 	officials 	who 	actually 	knew 	of 	a
substantial risk to inmate health or safety may be found
free from liability if they responded reasonably to the
risk, 	even 	if 	the 	harm 	ultimately 	was 	not 	averted. 	A
prison official’s duty under the Eighth Amendment is to
ensure 	“reasonable 	safety,” 	. 	. 	. 	a 	standard 	that
incorporates due regard for prison officials’ unenviable
task 	of 	keeping 	dangerous 	men 	in 	safe 	custody 	under
humane conditions. 	Whether one puts it in terms of duty
or 	deliberate 	indifference, 	prison 	officials 	who 	act
reasonably 	cannot 	be 	found 	liable 	under 	the 	Cruel 	and
Unusual Punishments Clause.
Farmer, 	511 	U.S. 	at 	844–45 	(internal 	quotations 	and 	citations
omitted). 	Indeed, 	a 	plaintiff 	bears 	the 	burden 	of 	showing 	that
the 	defendant 	acted 	with 	more 	than 	gross 	negligence. 	Hoffer 	v.
Sec’y. Fla. Dep’t of Corr., 973 F.3d 1263, 1270 (11th Cir. 2020).
Accordingly, to prevail on his deliberate indifference claims,
Smith 	must 	show: 	(1) 	an 	objectively 	serious 	risk 	to 	his
health/safety; (2) the defendants’ deliberate indifference to that
risk 	or 	his 	health/safety; 	and 	(3) 	causation 	between 	that
indifference and his injury. 	Mann v. Taser Int’l, Inc., 588 F.3d
1291, 	1306-07 	(11th 	Cir. 	2009). 	Here, 	there 	is 	no 	dispute 	as 	to
the objective component. 	(See Doc. 28-1 at 3; Doc. 28-2 at 3; Doc.
77 	at 	15). 	Rather, 	the 	issue 	turns 	on 	the 	subjective 	component
and causation. 	See Swain v. Junior, 961 F.3d 1276, 1286 (11th Cir.
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2020) 	(“[E]ven 	where 	‘prison 	officials 	. 	. 	. 	actually 	knew 	of 	a
substantial risk to inmate health or safety,’ they may nonetheless
‘be found free from liability if they responded reasonably to the
risk’ 	— 	and, 	importantly 	for 	present 	purposes, 	‘even 	if 	the 	harm
ultimately was not averted.’”) (quoting Farmer, 511 U.S. at 844).
Because 	Smith’s 	allegations 	primarily 	relate 	to 	Defendants’
actions, policies, and procedures in response to COVID-19, this is
where the Court begins.
1. Quarantining 	of 	Close 	Contact 	Persons 	and 	those 	Symptomatic
of COVID-19.
Smith claims Defendants Jackson, Hetrick, and Godwin ignored
CDC 	guidelines 	concerning 	the 	quarantining, 	screening, 	and
movement of close contact persons and those symptomatic of COVID-
19. 	(See 	Doc. 	59 	at 	4, 	7-8, 	10). 	To 	the 	extent 	Smith’s 	claims
rest 	on 	the 	premise 	that 	Defendants 	did 	not 	follow 	the 	CDC
guidelines, that he was harmed, and that Defendants are thus liable
for a constitutional violation, his claims fail.10 	This simply is
10 	To 	the 	extent 	Smith 	claims 	Defendants 	were 	deliberately
indifferent 	to 	his 	medical 	needs 	for 	failing 	to 	treat 	him, 	his
claim is not properly before the Court. 	(See Docs. 52, 55). 	Nor
is 	it 	borne 	out 	by 	the 	record. 	Indeed, 	review 	of 	the 	record
reveals that Smith repeatedly received treatment from the medical
staff 	at 	the 	Jail. 	Furthermore, 	he 	was 	never 	refused 	requested
treatment.
For medical treatment to rise to the level of a constitutional
violation, 	it 	must 	be 	“so 	grossly 	incompetent, 	inadequate, 	or
excessive 	as 	to 	shock 	the 	conscience 	or 	to 	be 	intolerable 	to
fundamental fairness.” 	Hoffer v. Sec’y. Fla. Dep’t. of Corr., 973
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not the law.
The 	seminal 	decision 	of 	Swain 	v. 	Junior 	guides 	the 	Court 	in
addressing Smith’s claims. 	In Swain, the Eleventh Circuit examined
the measures a Florida jail took to combat the spread of COVID-19.
While 	the 	Court 	compared 	the 	defendants’ 	actions 	to 	the 	CDC
guidelines, 	it 	made 	clear 	that 	the 	CDC 	guidelines 	did 	not 	set 	a
constitutional standard. 	See Swain, 961 F.3d at 1287-90; see also
F.3d 	1263, 	1271 	(11th 	Cir. 	2020) 	(quotation 	omitted). 	At 	worst,
Smith 	has 	alleged 	negligence 	in 	the 	failure 	of 	medical 	staff 	to
encourage Smith to resume his HIV treatment. 	The record reflects
that 	on 	June 	30, 	2021, 	Smith 	provided 	his 	previous 	prescriber’s
name 	and 	information, 	but 	when 	contacted, 	the 	facility 	did 	not
have 	records 	for 	Smith. 	(Doc. 	28-5 	at 	4). 	Smith 	inquired 	about
his 	medications 	the 	following 	day. 	(Id.). 	Thereafter, 	however,
Smith 	did 	not 	mention 	his 	HIV 	medications 	to 	medical 	staff 	until
January 	10, 	2022 	(and 	the 	records 	were 	obtained 	that 	same 	day).
(Doc. 	75-8 	at 	23-24, 	91). 	This 	is 	despite 	having 	submitted 	five
sick 	call 	requests 	for 	various 	complaints 	(and 	having 	been
evaluated) between July 2021 and January 2022. 	(See id. at 69-73,
89, 91). 	Moreover, when the record is read as a whole, it reflects
that 	Smith 	repeatedly 	refused 	HIV 	medication 	because 	he 	did 	not
think 	he 	would 	be 	incarcerated 	at 	the 	Jail 	for 	any 	substantial
length 	of 	time. 	The 	record 	supports 	that 	it 	was 	not 	until 	June
18, 	2022, 	that 	Smith 	stated 	he 	wanted 	to 	begin 	receiving 	HIV
treatment. 	Specifically, 	Smith 	was 	asked 	“if 	he 	still 	was 	not
wanting 	to 	receive 	any 	healthcare 	for 	HIV 	- 	[and 	Smith] 	state[d]
to 	th[e] 	nurse, 	‘Well 	yea 	I 	do 	because 	it 	don’t 	look 	like 	I’m
getting out no time soon. I wasn’t going to worry y’all or myself
about 	it 	& 	just 	do 	it 	when 	I 	got 	out 	but 	I’m 	not 	getting 	out 	no
time soon.’” 	(Doc. 28-5 at 7; Doc. 75-8 at 81).
Notably, 	Smith’s 	initial 	§ 	1983 	complaints 	filed 	in 	March 	and
April 2022 - before Smith decided to start receiving HIV treatment
at the Jail - raised challenges to his bond and the Jail’s response
to 	COVID-19, 	not 	the 	denial 	of 	medical 	care 	or 	failure 	to 	treat
his 	HIV. 	(See 	Docs. 	1, 	5). 	Thus, 	the 	record 	before 	the 	Court
supports that Smith refused treatment for his HIV condition until
the 	summer 	of 	2022 	and 	directly 	contradicts 	Smith’s 	factual
allegations.
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Mays v. Dart, 974 F.3d 810, 823 (7th Cir. 2020), cert. denied, 142
S. Ct. 69 (2021) (qualifying that the CDC guidelines — like other
administrative 	guidance 	— 	do 	not 	themselves 	set 	a 	constitutional
standard, 	while 	noting 	that 	the 	CDC 	guidelines 	provide 	the
authoritative 	source 	of 	guidance 	on 	prevention 	and 	safety
mechanisms 	for 	a 	novel 	coronavirus 	in 	a 	historic 	global 	pandemic
where the public health standards are emerging and changing). 	The
CDC guidelines provide that modifications should be made based on
the 	individual 	facility, 	institutional 	setting, 	and 	resources.
(Doc. 75-5 at 2 (“The [CDC] guidance may need to be adapted based
on 	individual 	facilities’ 	physical 	space, 	staffing, 	population,
operations, and other resources and conditions.”)); see also Swain,
961 	F.3d 	at 	1288. 	The 	Swain 	Court 	recognized 	the 	measures 	the
jail 	had 	taken 	in 	response 	to 	the 	COVID-19 	virus 	and 	determined
that 	based 	on 	the 	implemented 	procedures, 	it 	could 	not 	“conclude
that, 	when 	faced 	with 	a 	perfect 	storm 	of 	a 	contagious 	virus 	and
the 	space 	constraints 	inherent 	in 	a 	correctional 	facility, 	the
defendants here acted unreasonably by ‘doing their best.’ 	Because
the defendants ‘act[ed] reasonably,’ they ‘cannot be found liable’
under the Eighth Amendment.” 	Id. at 1289 (citing Farmer, 511 U.S.
at 845).11
11 Similarly, 	courts 	outside 	this 	circuit 	have 	consistently 	held,
in 	the 	context 	of 	the 	COVID-19 	pandemic, 	that 	a 	plaintiff 	must
provide more than conclusory allegations that defendants have not
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Here, 	the 	record 	similarly 	does 	not 	support 	that 	Defendants
turned 	a 	blind 	eye 	and 	deaf 	ear 	to 	the 	COVID-19 	pandemic 	and 	the
risks 	it 	posed 	to 	inmates 	generally 	or 	Smith 	specifically. 	See
Money v. Pritzker, 453 F. Supp. 3d 1103, 1131-32 (N.D. Ill. 2020)
(denying inmates’ preliminary injunction motion because defendants
listed 	steps 	they 	were 	taking 	in 	response 	to 	COVID-19 	and 	“[t]he
record simply does not support any suggestion that Defendants have
turned the kind of blind eye and deaf ear to a known problem that
would 	indicate 	‘total 	unconcern’ 	for 	the 	inmates’ 	welfare”)
(citation omitted); Coates v. Arndt, 2020 U.S. Dist. LEXIS 216371,
at 	*3, 	2020 	WL 	6801884, 	at 	*2 	(E.D. 	Wisc. 	Nov. 	18, 	2020) 	(“The
plain fact is that the country is experiencing a pandemic and cases
done 	enough 	to 	prevent 	or 	control 	the 	spread 	of 	the 	virus. 	See
Valentine 	v. 	Collier, 	978 	F.3d 	154, 	164 	(5th 	Cir. 	2020) 	(stating
that a facility’s mere failure to comply with CDC guidelines does
not rise to the level of a constitutional violation, and that the
Constitution does not require penal officials to implement “long-
term 	changes” 	or 	sanitize 	facilities 	“to 	the 	minimum 	extent
required 	to 	avoid 	the 	spread 	of 	COVID-19”); 	Hope 	v. 	Warden 	York
Cty. 	Prison, 	972 	F.3d 	310, 	330 	(3rd 	Cir. 	2020) 	(rejecting
petitioners’ 	arguments 	that 	exposure 	to 	COVID-19 	was 	per 	se
unconstitutional 	and 	that 	the 	government 	must 	entirely 	eliminate
their 	risk 	of 	exposure 	in 	order 	to 	comply 	with 	constitutional
mandates); Wilson v. Williams, 961 F.3d 829, 842–43 (6th Cir. 2020)
(rejecting 	the 	contention 	that 	“the 	[Bureau 	of 	Prisons] 	was
deliberately indifferent to petitioners’ health and safety because
[its] 	actions 	have 	been 	ineffective 	at 	preventing 	the 	spread 	of
COVID-19,” 	where 	the 	evidence 	showed 	the 	Bureau 	of 	Prisons 	had
implemented numerous safeguards to combat the risk posed by COVID-
19); cf. King v. Fairman, 997 F.2d 259, 261 (7th Cir. 1993) (“[T]o
sustain 	his 	constitutional 	claim, 	[the 	inmate] 	must 	demonstrate
something 	approaching 	a 	total 	unconcern 	for 	his 	welfare 	in 	the
face of serious risks, or a conscious, culpable refusal to prevent
harm.”) (internal citations and quotation marks omitted).
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of COVID-19 are breaking out in prisons and communities across the
country. 	This 	does 	not 	mean 	that 	the 	correctional 	officers 	in
charge of those prisons are subjecting inmates to cruel and unusual
punishment. 	People, 	both 	inside 	and 	outside 	prisons 	and 	jails,
are 	contacting 	COVID-19 	. 	. 	. 	.”). 	Smith 	challenges 	Defendants’
failure 	to 	follow 	the 	“strong 	recommendations” 	of 	the 	CDC
guidelines, 	yet 	they 	are 	just 	that 	– 	recommendations. 12 	To
determine 	liability, 	the 	Court 	must 	look 	not 	at 	what 	Defendants
failed to do, but at what Defendants did. 	See Valentine v. Collier,
956 F.3d 797, 801 (5th Cir. 2020) (determination of whether prison
conditions 	pose 	a 	substantial 	risk 	of 	serious 	harm 	from 	COVID-19
that 	amounts 	to 	cruel 	and 	unusual 	punishment 	must 	be 	determined
“after accounting for the protective measures [the prison or jail]
has taken”).
As previously discussed, the record reflects that Defendants
took ample measures to prevent the spread of COVID-19 at the Jail
through the creation of a written COVID-19 plan and implementation
of 	the 	same, 	including 	the 	screening 	of 	Jail 	staff 	upon 	arriving
to 	work, 	requiring 	staff 	to 	wear 	facemasks 	and 	other 	personal
protective equipment, screening and quarantining of intake inmates,
12 The 	CDC 	emphasizes 	in 	its 	interim 	guidance: 	“At 	this 	time,
different facility types (e.g., prison vs. jail) and sizes are not
differentiated. 	Administrators 	and 	agencies 	should 	adapt 	these
guiding principles to the specific needs of their facility.” 	(Doc.
75-5 at 4).
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distribution 	of 	facemasks 	to 	inmates, 	increased 	cleaning, 	and
separate isolation and quarantine housing when the spacing allowed
for 	it. 	Also, 	inmates 	who 	tested 	positive 	for 	COVID-19 	were
provided 	medication 	specific 	to 	the 	treatment 	of 	the 	virus.
Defendants 	tracked 	the 	number 	of 	cases 	and 	locked 	down 	the 	Jail
when 	necessary 	to 	stop 	the 	spread 	of 	the 	virus 	– 	indeed, 	this 	is
what occurred during the time most pertinent to Smith’s complaint,
January 2022.
To 	the 	extent 	Smith 	takes 	exception 	to 	Defendants’ 	use 	of
cohorting13 inmates 	in 	their 	assigned 	cells 	and 	locking 	down 	the
Jail 	in 	January 	2022, 	Smith 	cannot 	establish 	deliberate
indifference. 	The CDC guidelines present cohorting as a means of
containment for jails and detention centers when space is limited,
as 	Defendants 	testify 	was 	the 	case 	at 	the 	Jail. 	While 	the 	CDC
suggests that cohorting be used as, arguably, a last resort,14 that
is 	how 	Defendants 	utilized 	it. 	Cohorting 	was 	implemented 	by
13 	The 	CDC 	defines 	“cohorting” 	as 	“the 	practice 	of 	isolating
multiple laboratory-confirmed COVID-19 cases together as a group,
or quarantining close contacts of a particular case together as a
group.” 	(Doc. 75-5 at 4).
14 The 	CDC 	guidelines 	state: 	“Ideally, 	cases 	should 	be 	isolated
individually, 	and 	close 	contacts 	should 	be 	quarantined
individually. 	However, some correctional facilities and detention
centers 	do 	not 	have 	enough 	individual 	cells 	to 	do 	so 	and 	must
consider cohorting as an alternative.” 	(Doc. 75-5 at 4). 	“If an
entire housing unit is under quarantine due to contact with a case
from the same housing unit, the entire housing unit may need to be
treated as a cohort and quarantine in place.” 	(Id. at 20).
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Defendants during an active, Jail-wide outbreak of the virus. 	It
was 	not 	the 	normal, 	day-to-day 	practice 	of 	the 	Jail. 	And 	Smith
does not allege otherwise. 	According to the CDC guidelines, “[i]f
an 	entire 	housing 	unit 	is 	under 	quarantine 	due 	to 	contact 	with 	a
case from the same housing unit, the entire housing unit may need
to be treated as a cohort and quarantine in place.” 	(Doc. 75-5 at
20). 	This 	is 	what 	Defendants 	practiced 	during 	the 	January 	2022
outbreak. 	The 	record 	reflects 	that 	Defendants 	took 	quick 	action
to lock down the Jail and to secure inmates in their assigned cells
within their units. 	The record further reflects that this practice
resulted 	in 	halting 	the 	active 	virus 	in 	mid-January 	2022 	and
stopping 	the 	spread 	of 	the 	virus 	within 	the 	Jail 	within
approximately 	two 	weeks. 	Indeed, 	this 	result 	confirms 	that
Defendants 	acted 	in 	a 	reasonable 	manner 	under 	the 	circumstances
and were not deliberately indifferent to the risk the virus posed
to inmates.
Nor does the record support that Defendants were deliberately
indifferent 	to 	Smith’s 	serious 	medical 	conditions 	concerning 	the
risks 	posed 	by 	COVID-19 	based 	on 	the 	protocols 	and 	policies
implemented 	at 	the 	Jail. 	There 	is 	no 	evidence 	to 	suggest 	that
Defendants 	were 	aware 	of 	any 	COVID-19 	positive 	cases 	in 	Unit 	3
when 	Smith 	was 	returned 	to 	his 	cell 	on 	January 	1, 	7, 	10, 	and 	12,
as 	there 	were 	no 	confirmed 	cases 	of 	the 	virus 	until 	January 	14,
2022. 	(Doc. 	75-6 	at 	5). 	Accordingly, 	it 	cannot 	be 	said 	that
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Defendants ignored a risk of harm to Smith at that time, when they
had no knowledge a positive COVID-19 case existed. 	Nor did Smith
alert 	any 	defendant, 	officer, 	or 	medical 	staff 	member 	to 	the
development 	of 	new 	symptoms, 	the 	worsening 	of 	symptoms, 	or 	the
need to see medical, and he did not request to be moved during the
time of the COVID-19 outbreak. 	Smith’s January 14, 2022 grievances
to 	Warden 	Hetrick 	do 	nothing 	to 	change 	this, 	as 	Smith 	did 	not
articulate 	any 	specific 	risk 	of 	harm 	posed 	to 	himself, 	he 	listed
no serious chronic health conditions or worsening of any condition,
and he did not describe experiencing COVID-19 symptoms or worsening
of 	symptoms. 	(See 	Doc. 	75-1 	at 	9-10). 	Instead, 	the 	core 	of 	his
grievance 	was 	his 	desire 	to 	promptly 	file 	a 	§ 	1983 	complaint,
partly (if not primarily) based on his alleged failure to receive
a preliminary hearing. 	(See Doc. 75-7 at 5-6). 	Smith’s grievances
were 	simply 	insufficient 	to 	put 	Defendants 	on 	notice 	of 	a
substantial serious risk of harm to his health from COVID-19.
Smith appears to argue that Defendants should have recognized
that 	he 	faced 	a 	high 	risk 	of 	serious 	harm 	from 	being 	housed 	with
or near inmates who tested positive for COVID-19 or those who were
symptomatic 	of 	the 	virus 	because 	he 	suffered 	from 	HIV 	and 	other
chronic conditions. 	Taking this as true, the record supports that
there 	were 	no 	isolation 	options 	available. 	Defendants 	have
testified, 	and 	Smith 	has 	not 	disputed, 	that 	there 	were 	no
alternative 	locations 	to 	place 	sick 	inmates 	or 	to 	isolate 	Smith
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after he had been exposed to the virus in January of 2022. 	(Doc.
63 	at 	5-8; 	Doc. 	75-2 	at 	6). 	According 	to 	the 	record, 	once 	the
COVID-19 	outbreak 	began, 	it 	spread 	to 	all 	units 	of 	the 	Jail, 	and
no 	designated 	isolation 	areas 	were 	available. 	Since 	Smith 	was
assigned to Unit 3 and had been in close contact with those inmates,
he 	was 	cohorted 	with 	the 	same 	group 	to 	limit 	further 	exposure.
While 	this 	practice 	is 	far 	from 	ideal, 	Smith 	has 	failed 	to 	put
forth 	sufficient 	facts 	showing 	that 	Defendants 	were 	deliberately
indifferent in making the decision to quarantine all close contact
inmates inside their assigned units, along with those symptomatic
of the COVID-19 virus. 	This is particularly true given that during
the 	lockdown, 	the 	Jail 	attempted 	to 	place 	the 	COVID-19 	positive
inmates in cells separate from the general population to the extent
possible. 	Thus, 	the 	record 	confirms 	that 	Defendants 	responded
reasonably to the risk posed by an outbreak of the novel COVID-19
virus 	at 	the 	Jail 	and 	followed 	CDC 	guidance 	for 	such 	situation,
given 	the 	space 	constraints 	at 	the 	Jail. 	Moreover, 	the 	record
confirms 	that 	the 	outbreak 	was 	stopped 	quickly 	by 	Defendants’
actions.
Consequently Claim 1 against Defendants Jackson and Hetrick,
as well as Claim 1 against Nurse Godwin, should be dismissed.
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2. Failure 	to 	Adequately 	Train, 	Instruct 	and 	Supervise 	the
Jail.
Smith 	claims 	Defendants 	Jackson 	and 	Hetrick 	are 	liable 	for
“failing 	to 	adequately 	instruct, 	train 	and/or 	supervise 	the 	jail
staff under [their] direct authority, in the proper identification
and 	quarantining 	of 	‘close 	contacts’ 	and 	the 	process 	for 	safely
changing 	the 	housing 	assignments 	of 	detainees, 	during 	the 	COVID-
19 	outbreak 	at 	the 	Escambia 	County 	Jail, 	as 	stated 	in 	the 	CDC
guidelines, 	which 	failure 	did 	result 	in 	the 	preventable 	exposure
of other detainees to COVID-19, including, but not limited to the
Plaintiff.” 	(Doc. 59 at 7, 9). 	The only evidence Smith offers to
support these claims are the allegations of his verified complaint,
in 	which 	he 	alleges 	that 	after 	reporting 	to 	sick 	call 	in 	January
2022, 	where 	he 	requested 	but 	was 	denied 	a 	COVID-19 	test, 	he 	“was
simply returned to the housing unit from which he came.” 	(Doc. 59
at 12-13). 	Smith claims “that there were prisoners in his housing
unit who displayed symptoms of COVID-19” and that he “was moved to
another Housing unit without taking any of the appropriate measures
prescribed 	by 	the 	CDC’s 	guidelines 	and 	placed 	in 	another 	housing
unit with other detainees, also displaying symptoms of COVID-19.”
(Id. at 13).
“[U]nder § 1983, a supervisor can be held liable for failing
to 	train 	his 	or 	her 	employees 	only 	where 	the 	failure 	to 	train
amounts 	to 	deliberate 	indifference 	to 	the 	rights 	of 	persons 	with
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whom 	the 	[officers] 	come 	into 	contact.” 	Keith 	v. 	DeKalb 	County,
Ga., 	749 	F.3d 	1034, 	1052 	(11th 	Cir. 	2014) 	(quotation 	omitted).
For 	the 	reasons 	previously 	discussed, 	Smith’s 	return 	to 	his 	Unit
3 	cell 	does 	not 	establish 	deliberate 	indifference 	where 	the 	Jail
was on lockdown due to a viral outbreak. 	When Smith was moved to
Unit 2, Defendants have shown that it was for disciplinary reasons
(not arbitrarily), and he was held in an individual cell (not with
symptomatic inmates). 	Smith has not disputed this. 	To the extent
Smith argues the CDC guidelines were not followed during his moves
throughout 	the 	Jail, 	as 	previously 	discussed, 	the 	CDC 	guidelines
are 	not 	federal 	laws 	in 	and 	of 	themselves. 	Furthermore, 	“[a]
pattern 	of 	similar 	constitutional 	violations 	by 	untrained
employees 	is 	ordinarily 	necessary 	to 	demonstrate 	deliberate
indifference 	for 	purposes 	of 	failure 	to 	train.” 	Weiland 	v. 	Palm
Beach Cty. Sheriff’s Office, 792 F.3d 1313, 1328 (11th Cir. 2015)
(quotation 	omitted). 	This 	is 	simply 	lacking 	here, 	as 	the 	record
is 	devoid 	of 	evidence 	of 	a 	pattern 	of 	similar 	constitutional
violations by Defendants or correctional officers at the Jail.
Accordingly, Claim 5 asserted against Defendants Jackson and
Hetrick should be dismissed.
3. Ignored Grievances and Requests Concerning Serious Medical
Condition.
Smith claims he made numerous requests, grievances, and other
communications 	to 	Defendants 	Jackson 	and 	Hetrick 	concerning 	his
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serious medical condition and the risk to his health from exposure
to COVID-19. 	(Doc. 59 at 7, 9). 	This, however, is not borne out
by 	the 	record. 	Indeed, 	Defendants 	have 	provided 	grievances 	and
medical requests submitted through the kiosk system and certified
the 	accuracy 	of 	the 	same. 	None 	indicate 	an 	attempt 	by 	Smith 	to
inform 	Defendants 	Jackson 	and 	Hetrick 	of 	his 	underlying 	health
conditions, 	and 	none 	complain 	of 	or 	identify 	a 	personalized,
specific risk to Smith posed by COVID-19. 	Defendants Jackson and
Hetrick have also testified that they have no recollection of Smith
verbally 	(or 	by 	any 	means) 	communicating 	to 	them 	that 	he 	was 	at
high risk of serious health complications from the COVID-19 virus.
(See Doc. 75-1 at 1; Doc. 75-2 at 2). 	While the Court is required
to view all factual inferences in a light most favorable to Smith
as 	the 	nonmovant, 	this 	does 	not 	relieve 	Smith 	of 	his 	burden 	to
defeat a properly supported motion for summary judgment. 	See Brown
v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990). 	Smith bears the
burden 	at 	this 	stage 	of 	coming 	forth 	with 	evidence 	that 	a
reasonable 	factfinder 	could 	use 	to 	find 	in 	his 	favor 	at 	trial.
See Celotex, 477 U.S. at 322 (holding that summary judgment is due
to 	be 	granted 	where 	a 	plaintiff 	fails 	to 	establish 	the 	existence
of an element essential to his case, for which he bears the burden
at 	trial). 	Based 	on 	the 	record 	before 	the 	Court, 	Smith 	has 	not
established 	that 	Defendants 	Jackson 	and 	Hetrick 	had 	knowledge 	of
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his 	serious 	health 	conditions 	and 	acted 	with 	deliberate
indifference to a known risk of harm to him.
Accordingly, 	Smith 	has 	failed 	to 	establish 	that 	there 	is 	a
genuine 	issue 	as 	to 	a 	material 	fact 	to 	preclude 	summary 	judgment
as to Claim 6 against Defendants Jackson and Hetrick.
4. Medical Diagnosis and Testing at the Jail.
Smith 	also 	alleges 	that 	Defendants 	are 	constitutionally
liable 	for 	allowing 	unqualified 	nurses 	to 	make 	medical 	diagnoses
and 	requiring 	nurses 	to 	diagnose 	health 	conditions 	without
objective 	medical 	tests, 	including 	COVID-19. 	(Doc. 	59 	at 	7-11).
These 	conclusory 	allegations, 	however, 	are 	not 	borne 	out 	by 	the
record.
Nurse 	Godwin 	has 	testified 	that 	she 	is 	a 	licensed 	practical
nurse (“LPN”) in the State of Alabama, licensed on August 26, 2010.
(Doc. 76-1 at 1). 	She maintains that as a nurse at the Jail, she
“assess[ed] inmate medical issues” and “would consult with Dr. Low
who 	would 	make 	final 	medical 	diagnoses.” 	(Id. 	at 	2). 	According
to the Alabama Board of Nursing Regulations, a “licensed nurse may
receive handwritten, verbal, or electronic medical orders from the
legally 	authorized 	prescriber 	relayed 	by 	another 	licensed 	or
registered 	health 	care 	professional, 	or 	registered 	or 	certified
medical assistant.” 	Ala. Admin. Code 610-X-6-.10(1). 	A “licensed
nurse may implement approved medical protocols and standing orders
at the direction of a legally authorized prescriber.” 	Ala. Admin.
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Code 	610-X-6-.10(2). 	In 	Alabama, 	LPNs 	who 	practice 	under 	the
supervision 	of 	a 	physician, 	like 	Nurse 	Godwin, 	are 	authorized 	to
participate in the following types of nursing care:
(a) 	Completing 	independent 	or 	comprehensive 	patient
assessments 	of 	the 	health 	status 	of 	the 	patient 	under
approved standardized procedures.
(b) 	Collecting 	objective 	and 	subjective 	data 	from
observations, 	nursing 	examinations, 	interviews, 	and
written 	records 	in 	an 	accurate 	and 	timely 	manner, 	as
appropriate to the patient’s health care needs.
(c) Distinguishing abnormal from normal data.
(d) Recording and reporting the data.
(e) 	Anticipating 	and 	recognizing 	changes 	or 	potential
changes 	in 	patient 	status; 	identifying 	signs 	and
symptoms of deviation from current health status.
(f) Reporting findings of the focused nursing assessment
to 	the 	registered 	nurse, 	licensed 	physician, 	advanced
practice nurse, or dentist.
(g) 	Participating 	and 	contributing 	to 	the 	development,
modification, 	and 	implementation 	of 	a 	patient 	centered
healthcare plan for unstable, unpredictable, or emergent
patients to include the evaluation of patient responses,
and identification of patient needs and goals.
(h) 	The 	licensed 	practical 	nurse 	may 	plan 	the 	nursing
care 	for 	a 	patient 	whose 	condition 	is 	stable 	or
predictable 	consistent 	with 	state 	and 	federal
regulations.
Ala. Admin. Code 610-X-6-.09(3)(a)-(h).
Review 	of 	the 	record 	reveals 	that 	each 	nursing 	note 	made 	by
Nurse 	Godwin 	(and 	all 	Jail 	medical 	staff) 	falls 	within 	these
parameters. 	This 	Court 	has 	found 	no 	state 	or 	federal 	law 	that
requires 	objective 	testing 	to 	diagnosis 	a 	patient, 	and 	Smith 	has
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provided 	none. 	Accordingly, 	to 	the 	extent 	Smith 	desired 	a
different 	course 	of 	treatment 	or 	action, 	he 	has 	not 	stated 	a
constitutional 	violation. 	See, 	e.g., 	Hamm 	v. 	DeKalb 	County, 	774
F.2d 1567, 1575 (11th Cir. 1985) (“Although Hamm may have desired
different 	modes 	of 	treatment, 	the 	care 	the 	jail 	provided 	[which
consisted of multiple infirmary visits and prescribed medication]
did 	not 	amount 	to 	deliberate 	indifference”). 	Furthermore, 	the
record 	confirms 	that 	Dr. 	Low 	approved 	all 	diagnoses 	of 	Smith 	and
all 	prescribed 	medications 	and 	plans 	of 	actions 	for 	him 	when
treated 	by 	Nurse 	Godwin. 	(See 	Doc. 	75-8). 	Notably, 	the 	medical
record 	most 	relevant 	to 	this 	action 	- 	that 	of 	January 	12, 	2022,
when 	Smith 	was 	evaluated 	days 	before 	the 	COVID-19 	outbreak 	was
documented 	at 	the 	Jail 	– 	reveals 	that 	Smith 	was 	seen 	and 	treated
by Dr. Low, not Nurse Godwin or any nurse. 	(See id. at 9). 	Thus,
his claims are belied by the record.
Smith 	also 	alleges 	that 	Defendants 	acted 	with 	deliberate
indifference by failing to mandate or provide COVID-19 tests upon
the 	request 	of 	detainees, 	especially 	those 	at 	“high 	risk” 	of
serious illness from the virus. 	(Doc. 59 at 7-9, 11). 	Defendants
maintain 	that 	“the 	decision 	to 	test 	an 	inmate 	for 	COVID-19 	was 	a
medical 	decision 	that 	was 	made 	by 	[the 	Jail’s] 	medical 	staff.”
(Doc. 	75-2 	at 	5; 	see 	also 	Doc. 	75-1 	at 	3). 	“There 	was 	no 	policy
dictating whether or not nurses or medical staff could use a COVID-
19 test to assess an inmate’s symptoms. 	The medical staff at the
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Jail could order a COVID-19 test for any inmate when they believed
such 	testing 	was 	warranted 	in 	their 	professional 	clinical
judgment.” 	(Doc. 	75-1 	at 	3; 	Doc. 	75-2 	at 	5). 	And 	the 	record
confirms that COVID-19 tests were administered at the Jail. 	(See
Doc. 75-3). 	Sheriff Jackson and Warden Hetrick had “no reason to
believe that [the Jail’s] medical staff was not properly treating
inmates.” 	(Doc. 	75-1 	at 	3; 	Doc. 	75-2 	at 	5). 	And 	Smith 	has 	not
put forth evidence showing otherwise.
It 	is 	undisputed 	that 	Smith 	did 	not 	receive 	a 	COVID-19 	test
from the Jail’s medical staff. 	However, the record reflects that
Smith 	received 	abundant 	medical 	treatment 	while 	incarcerated 	at
the 	Jail. 	In 	fact, 	Smith 	was 	evaluated 	numerous 	times 	and
repeatedly received treatment for his complaints. 	See Waldrop v.
Evans, 	871 	F.2d 	1030, 	1035 	(11th 	Cir. 	1989) 	(“[W]hen 	a 	prison
inmate has received medical care, courts hesitate to find an Eighth
Amendment violation.”). 	Deliberate indifference to medical needs
typically includes grossly inadequate care, a decision to take an
easier 	but 	less 	efficacious 	course 	of 	treatment, 	and/or 	medical
care 	that 	is 	so 	cursory 	as 	to 	amount 	to 	no 	treatment 	at 	all.
Melton, 	841 	F.3d 	at 	1223. 	The 	decision 	not 	to 	provide 	Smith 	a
COVID-19 	test, 	but 	where 	he 	received 	treatment 	for 	his 	symptoms,
can 	rise 	only 	to 	the 	level 	of 	negligence, 	not 	deliberate
indifference. 	It 	is 	well-settled 	that 	“a 	complaint 	that 	a
physician 	has 	been 	negligent 	in 	diagnosing 	or 	treating 	a 	medical
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condition 	does 	not 	state 	a 	valid 	claim 	of 	medical 	mistreatment
under the Eighth Amendment.” 	Estelle v. Gamble, 429 U.S. 97, 106
(1976).
Medical 	malpractice 	does 	not 	become 	a 	constitutional
violation 	merely 	because 	the 	victim 	is 	a 	prisoner. 	In
order to state a cognizable claim, a prisoner must allege
acts 	or 	omissions 	sufficiently 	harmful 	to 	evidence
deliberate indifference to serious medical needs. 	It is
only 	such 	indifference 	that 	can 	offend 	“evolving
standards 	of 	decency” 	in 	violation 	of 	the 	Eighth
Amendment.
Id. 	The failure to provide a COVID-19 test alone falls drastically
short 	of 	establishing 	deliberate 	indifference 	under 	the
circumstances 	of 	this 	case. 	See 	Keohane 	v. 	Fla. 	Dep’t 	of 	Corr.
Sec’y, 952 F.3d 1257, 1266 (11th Cir. 2020) (listing circuit court
cases holding that deliberate indifference is not established when
inmates 	are 	provided 	“medical 	treatment 	even 	if 	it 	is 	subpar 	or
different from what the inmate wants”) (citations omitted).
Accordingly, 	Claims 	2, 	3, 	and 	7 	asserted 	against 	Defendants
Jackson 	and 	Hetrick, 	and 	Claim 	2 	asserted 	against 	Nurse 	Godwin,
are due to be dismissed.
5. Creation of COVID-19 Plan and Policies.
Smith 	alleges 	that 	Defendants 	coordinated 	to 	create 	and
implement 	a 	COVID-19 	plan 	at 	the 	Jail, 	which 	he 	claims 	was
insufficient and deliberately indifferent to his high-risk medical
conditions. 	(Doc. 59 at 4, 7-11).
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As 	to 	Nurse 	Godwin, 	she 	has 	testified 	that 	she 	served 	as 	a
staff 	nurse 	at 	the 	Jail 	from 	2017 	to 	June 	2022 	and 	became 	the
Director 	of 	Nursing 	at 	the 	Jail 	in 	June 	2022. 	(Doc. 	76-1 	at 	1).
Thus, she had no part in creating the COVID-19 plan for the Jail.
Defendants 	Jackson 	and 	Hetrick 	have 	testified 	that 	they 	worked
with 	the 	Director 	of 	Nursing 	at 	the 	time, 	Meagan 	Langford, 	and
with the Jail’s physician, Dr. Low, to establish the COVID-19 plan
in 	March 	2020. 	(See 	Docs. 	75-1 	at 	2; 	75-2 	at 	3). 	Because 	there
is no genuine dispute that Nurse Godwin did not participate in the
creation of the COVID-19 plan and policies, this claim against her
should be dismissed.
As previously discussed, the Jail’s COVID-19 plan was guided
by 	the 	CDC’s 	recommendations 	for 	correctional 	and 	detention
centers. 	The 	Jail 	implemented 	the 	CDC’s 	policies 	and
recommendations 	“to 	the 	best 	of 	its 	ability 	considering 	spacing,
security, staffing, and supply chain constraints.” 	(Doc. 75-1 at
3). 	As 	laid 	out, 	supra, 	at 	Sections 	II.A. 	and 	III.B.1., 	the
policies 	and 	procedures 	created 	and 	implemented 	by 	the 	Jail
evidence 	reasonable 	mitigation 	measures 	to 	abate 	the 	risks
associated 	with 	COVID-19, 	such 	that 	Smith’s 	claim 	of 	deliberate
indifference 	fails. 	See 	Henry 	v. 	Hulett, 	969 	F.3d 	769, 	783 	(7th
Cir. 2020) (en banc) (“When evaluating reasonableness, . . . courts
must 	afford 	prison 	administrators 	‘wide-ranging 	deference 	in 	the
adoption 	and 	execution 	of 	policies 	and 	practices 	that 	in 	their
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judgment are needed to preserve internal order and discipline and
to 	maintain 	institutional 	security.’”) 	(quoting 	Bell 	v. 	Wolfish,
441 U.S. 520, 547 (1979)). 	Taken as a whole, the actions taken by
Defendants 	to 	prevent 	or 	curb 	the 	spread 	of 	COVID-19 	at 	the 	Jail
do not satisfy the requisite state of mind indicative of subjective
deliberate 	indifference, 	which 	has 	been 	likened 	by 	the 	Supreme
Court to be recklessness, and Smith has failed to carry his burden
to 	show 	otherwise. 	Accordingly, 	it 	is 	recommended 	that 	summary
judgment 	be 	granted 	in 	favor 	of 	Defendants 	as 	to 	the 	Eighth
Amendment 	claims 	asserted 	against 	them. 	Thus, 	Claim 	4 	asserted
against 	Defendants 	Jackson 	and 	Hetrick, 	and 	Claim 	3 	asserted
against Nurse Godwin, should be dismissed.
6. Transfer from the Jail.
Smith 	claims 	that 	Sheriff 	Jackson 	and 	Warden 	Hetrick 	are
liable for failing to pursue an “own recognizance” bond to protect
him, instead of as a means to reduce their healthcare costs, namely
that 	of 	his 	HIV 	medications. 	(Doc. 	59 	at 	4, 	7-10). 	As 	best 	the
Court 	can 	discern, 	Smith 	appears 	to 	claim 	that 	he 	was 	released
from the Escambia County Jail because the Jail did not want to pay
for his HIV medications. 	This claim is belied by the record.
First, Warden Hetrick has provided unrebutted testimony that
he “cannot sign a signature bond for inmates or choose to release
inmates.” 	(Doc. 	75-2 	at 	7). 	Second, 	the 	record 	reflects 	that
“[o]n March 23, 2023, the Jail received a request from Lee County
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to 	hold 	Smith 	upon 	the 	resolution 	of 	his 	charges 	in 	Escambia
County.” 	(Id. 	at 	7-8, 	43-44). 	And 	Sheriff 	Jackson 	executed 	a
signature bond to release Smith into the custody of the Lee County
Jail in September 2022, so that he could deal with pending criminal
charges 	in 	that 	county. 	(Doc. 	75-1 	at 	2). 	Third, 	the 	record
reflects that Smith’s HIV medications were being provided or funded
by the Mobile County Health Department and/or Ryan White Services.
(See 	Doc. 	75-1 	at 	2; 	Doc. 	75-8 	at 	37). 	Thus, 	the 	Jail 	was 	not
responsible for purchasing Smith’s HIV medications.
Accordingly, 	Smith 	has 	failed 	to 	carry 	his 	burden 	of
establishing his claim, and summary judgment is due to be granted.
Claim 8 asserted against Defendants Jackson and Hetrick should be
dismissed.
C. Causation.
Smith 	has 	further 	failed 	to 	carry 	his 	burden 	to 	present
sufficient evidence demonstrating causation between a worsening of
his 	medical 	conditions 	and 	Defendants’ 	actions. 	No 	doubt, 	the
record 	supports 	that 	in 	December 	2019, 	Smith 	had 	CD4 	and 	viral
load levels of 449 and 39, respectively (Doc. 75-8 at 67), and in
July of 2022 his levels fell to a CD4 count of 208 and viral load
level 	of 	147,000 	(Doc. 	75-4 	at 	122, 	125). 	However, 	the 	record
also 	reflects 	that 	Smith 	refused 	HIV 	treatment 	for 	months 	while
incarcerated. 	While Smith disputes this, arguing that he requested
his 	medications 	days 	after 	his 	booking 	in 	late 	June 	2021, 	the
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medical 	records 	show 	that 	the 	medical 	staff 	attempted 	to 	obtain
Smith’s HIV prescriptions to no avail based on the information he
provided 	them. 	(See 	Doc. 	75-8 	at 	10). 	Thereafter, 	despite
multiple 	sick 	call 	requests 	and 	medical 	evaluations, 	Smith 	never
inquired about his HIV medication again, not through a grievance,
sick call request, or in person during an evaluation. 	Rather there
is no mention of his HIV treatment until January 2022, when Nurse
Langford 	noted 	that 	she 	would 	get 	records 	from 	his 	previous
provider. 	(Id. at 91). 	Thereafter, in February 2022, Smith again
refused 	HIV 	medication. 	(Id. 	at 	9). 	To 	the 	extent 	Smith 	denies
he refused medication, his denial is not supported when the record
is 	read 	as 	whole. 	(Compare 	February 	2, 	2022 	chart 	note 	(id. 	at
9), 	with 	June 	18, 	2022 	chart 	note 	(id. 	at 	6)). 	Indeed, 	any
assertion 	that 	Smith 	was 	actively 	seeking 	his 	HIV 	medication 	is
contradicted by the record, which is devoid of any request for HIV
medication 	or 	inquiry 	into 	receiving 	HIV 	treatment, 	despite
multiple sick call requests and medical evaluations, until months
later, in June 2022, when medical staff asked Smith about resuming
his HIV treatment. 	(Id. at 81).
While 	the 	record 	may 	support 	that 	Smith’s 	HIV 	condition
worsened 	from 	December 	2019 	through 	July 	2022,15 based 	on 	the
totality of the record, no rational trier of fact could find that
15 It 	is 	noteworthy 	that 	Smith 	was 	only 	incarcerated 	at 	the 	Jail
for a portion of that time (from June 2021 to September 2022).
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the cause of the deterioration was due to deliberate indifference
on the part of Defendants or any denial of requested HIV treatment.
Cf. 	Hoffer, 	973 	F.3d 	at 	1271 	(emphasizing 	that 	medical 	treatment
violates 	the 	Eighth 	Amendment 	“only 	when 	it 	is 	so 	grossly
incompetent, 	inadequate, 	or 	excessive 	as 	to 	shock 	the 	conscience
or to be intolerable to fundamental fairness”) (quotation omitted).
Consequently, 	summary 	judgment 	is 	due 	to 	be 	granted 	in 	favor 	of
Defendants.
IV. 	Conclusion.
Based 	on 	the 	foregoing 	analysis, 	the 	undersigned 	concludes
that 	there 	are 	no 	genuine 	issues 	of 	material 	fact, 	and 	that
Defendants 	are 	entitled 	to 	judgment 	as 	a 	matter 	of 	law 	on 	all
claims 	and 	causes 	of 	action 	interposed 	by 	Plaintiff 	Smith.
Therefore, 	it 	is 	recommended 	that 	Defendants’ 	motion 	for 	summary
judgment 	(Doc. 	81) 	be 	GRANTED 	on 	all 	counts, 	and 	that 	Plaintiff
Smith’s action against Defendants Heath Jackson, Richard Hetrick,
and Kristy Godwin be DISMISSED with prejudice.
The 	instructions 	below 	contain 	important 	information
regarding 	objections 	to 	the 	report 	and 	recommendation 	of 	the
Magistrate Judge.
NOTICE OF RIGHT TO FILE OBJECTIONS
A 	copy 	of 	this 	report 	and 	recommendation 	shall 	be 	served 	on
all parties in the manner provided by law. 	Any party who objects
to this recommendation or anything in it must, within fourteen (14)
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days of the date of service of this document, file specific written
objections with the Clerk of this Court. 	See 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 72(b); S.D. Ala. GenLR 72(c). 	The parties should
note 	that 	under 	Eleventh 	Circuit 	Rule 	3-1, 	“[a] 	party 	failing 	to
object 	to 	a 	magistrate 	judge’s 	findings 	or 	recommendations
contained 	in 	a 	report 	and 	recommendation 	in 	accordance 	with 	the
provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge
on appeal the district court’s order based on unobjected-to factual
and legal conclusions if the party was informed of the time period
for objecting and the consequences on appeal for failing to object.
In the absence of a proper objection, however, the court may review
on appeal for plain error if necessary in the interests of justice.”
11th Cir. R. 3-1.
In 	order 	to 	be 	specific, 	an 	objection 	must 	identify 	the
specific 	finding 	or 	recommendation 	to 	which 	objection 	is 	made,
state 	the 	basis 	for 	the 	objection, 	and 	specify 	the 	place 	in 	the
Magistrate 	Judge’s 	report 	and 	recommendation 	where 	the 	disputed
determination is found. 	An objection that merely incorporates by
reference or refers to the briefing before the Magistrate Judge is
not specific.
DONE this 3rd day of December, 2024.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
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